The Parliamentary Legal Services Unit had circulated to all Members, in advance, opinions on the draft regulations presented in different areas, and the legal advisers highlighted, in each case, their concerns, if any, and noted the aspects in which the draft regulations complied with the rules of Parliament. In relation to the Draft regulations made under section 24(1) of the Military Veterans Act 18 of 2011, the legal adviser pointed out a number of grammatical or spelling errors, incorrect consequential numbering or cross-references, and said that the regulations should not re-define the Appeals Board, as this was defined already in the principal Act. He recommended that all should be corrected to bring the regulations in line with correct drafting practices. Apart from this, the regulations met with the criteria in the rules and Constitution. Members asked whether it would be necessary for the regulations to come back to this Committee, once corrected, and received confirmation that the role of this Committee was to make recommendations to both Houses, so it would be sufficient for it merely to indicate its recommendation that the regulations must be corrected. The Committee agreed upon this and adopted a report to this effect that would be referred to the Houses.
The Parliamentary Legal Adviser noted that the Draft Regulations on the Housing Development Agency, in terms of section 32 of the Housing Development Agency Act, complied in most respects, but was concerned that regulation 23 sought to deal with penalties and offences, although the principal Housing Development Agency Act did not in fact specifically empower the Minister to make regulations in this regard, so she recommended that this particular regulation be deleted. The Chairperson of the Portfolio Committee on Human Settlements, who was present, asked for the opportunity to take this back to her Committee, noting that whilst she noted the point, there had been mixed views in her Committee, and the Minister had broad powers to make recommendations “on any matter that this Act requires or permits to be prescribed and any ancillary or incidental procedural matters that is necessary to prescribe for the proper administration of this Act”. Furthermore, she noted that the Act did not actually disempower the Minister. The Committee, after debate, decided that the Committee Report would note the recommendation that the majority of the regulations be adopted, except for clause 23 which required further engagement by the Portfolio Committee.
The Parliamentary Legal Advisers noted that the draft Credit Rating Rules in terms of section 24(3)(a)(ii) of the Credit Ratings Services Act complied with the criteria and no deficiencies were noted. Members agreed to recommend their adoption and adopted a Committee Report accordingly.
The Parliamentary Legal Advisers finally dealt with the Draft Supply Chain Management Regulations for Parliament, made under section 65(5) of the Financial Management of Parliament Act, noting that this was a re-submission to the Committee, which had been concerned about the drafting style and public participation processes in relation to the first draft and had referred the regulations back. Members were now satisfied that the regulations now tabled complied in all respects and adopted the Committee Report recommended the adoption to both Houses.
The Committee adopted its minutes of 22 May, 5 June and 15 August, subject to a technical correction of a name spelling in all three.
Adoption of regulations
Co-Chairperson Ms M Boroto noted that the regulations had to be adopted by this Committee. Legal opinions had been circulated to all Members (see the four attached documents). She asked the Parliamentary Legal Advisers to take the Committee through their opinions, in brief, focusing on the recommendations.
Draft regulations made under section 24(1) of the Military Veterans Act 18 of 2011
Mr Nathi Mxenjane, Parliamentary Legal Adviser, referred Members to his legal opinion and noted that in paragraph 12 he had suggested some amendments. The draft regulations were not properly drafted, and not compliant, in various respects, with proper grammar or spelling, and there were inaccuracies in consequential numbering and referencing.
It was not necessary to define the Appeals Board in the regulations, as this was already defined in the principal Act. The cross-reference to the “identity document” was inaccurate as the principal Act spoke of an “identity card” and the two must be brought in line. The citation of the “Civil Union” Act of 2006 was incorrect, as it should read “Civil Unions” Act.
Regulation 12 was grammatically inaccurate as there was a repetition of “the”. Regulation 37(2) made reference to regulations which were also incorrectly spelt, and referred to “victim” and not to “victims”. Regulation 38(3) was cross referenced to regulation 44, but that was inaccurate, because it was actually regulation 39 that should have been cited.
Mr Mxenjane recommended that all these points should be corrected to bring the regulations in line with correct drafting practice. Other than this, however, the remaining criteria had been met, as set out also in his opinion and the regulations complied with the requirements of the Constitution.
Ms S Kalyan wanted to question what paragraph 11 meant.
Ms Mxenjane said that the word “make” was unfortunately omitted mistakenly, and this should read : “the draft regulations do not make unusual use or powers…”
Ms Boroto asked if Members had seen anything unusual that needed to be explained, in the remainder of the legal opinion.
Co Chairperson Mr V Smith noted that there were time constraints, in terms of the number of days to pass these regulations and produce a report. Now that errors had been identified for correction, he asked whether this would have to go back to the Portfolio Committee for correction or whether this Committee could simply present a report in the House noting the need for correction. This Committee had difficulty in finding a suitable time to meet and Members were very busy with other matters.
Mr Frank Jenkins, Senior Parliamentary Legal Adviser, said that this Committee reported to the Houses for the information of other committees. There was generally no need for it to have regulations referred to it again.
Mr H Groenewald (DA) suggested that the Committee should accept and adopt the regulations that were not problematic.
Ms Boroto read out the draft Committee Report. This summarised what the regulations were, and the fact that the Committee, having deliberated and considered the subject, recommended that the relevant regulations be properly drafted in order to properly comply with drafting conventions, on accurate grammar, numbers and cross referencing. That would cover all the areas isolated by Mr Mjenxane, and comply with Mr Jenkins’ suggestion.
Members agreed and adopted the Committee Report.
Draft Regulations on Housing Development Agency in terms of section 32 of the Housing Development Agency Act
The Chairperson thanked the Chairperson of the Portfolio Committee on Human Settlements, for making herself available.
Ms Vuyokazi Ngcobozi, Parliamentary Legal Adviser, referred the Committee to paragraph 13.2 of her opinion. She had one concern with the regulations tabled. Regulation 23 sought to deal with penalties and offences. However, the Housing Development Agency Act (the principal Act) did not empower the Minister specifically to make any regulations regarding offences and penalties. She expanded on the principles of legality in her opinion, and had recommended that this regulation should be deleted. Other regulations presented were, however, acceptable and if this was corrected, she believed that the regulations would meet the criteria.
Ms B Dambuza (ANC, Chairperson of Human Settlements) said that this point had been raised in the Committee but her Committee had not yet arrived at a conclusion. She pointed out that the Act was quite general in regard to the Minister’s powers to make recommendations and she read out a portion as follows: “The Minister must, after consultation with the Agency and Parliament made recommendations regarding…. any matter that this Act requires or permits to be prescribed, and any ancillary or incidental procedural matters that are necessary to prescribe for the proper administration of this Act”. She added that the clause on offences and penalties said that it was an offence to refuse or fail to give information or data, when required to do so under that Act or intentionally to refuse to perform a duty or instruct any person in the exercise of a power or duty. The Act did not actually disempower the Minister from making regulations in relation to offences and penalties.
She requested that the Committee be given an opportunity to discuss this opinion and the Act further with the Parliamentary Legal Services Unit. Her Committee would like to finalise these regulations by the following week.
Mr Smith said that the question now before the current Committee was whether the Committee could still advise the Houses that, apart from regulation 23, all the others were in order. He asked Mr Jenkins if this could be done, and, after Mr Jenkins confirmed that it could, said that there was nothing more that this Committee had to do, other than to indicate that there was one outstanding matter.
Ms Boroto then read out a draft of the Committee report, which was to the effect that the Committee recommended that regulation 23 should be deleted, as it required the Minister to act outside he scope and powers of the Act.
Mr Smith and Ms S Kalyan (DA) said that they were not happy with this wording.
Mr Smith suggested the wording should rather refer to the need for regulation 23 to be revisited, between the Committee and the legal advisors. The remainder of the recommendations would be noted as acceptable. He suggested wording that “the regulation 23 be reviewed by the stakeholders, the Portfolio Committee and the Parliamentary Legal Services”.
Ms Dambuza said that she was requesting an opportunity for her Committee to engage further and repeated that the Minister was not actually disempowered. This Committee had a good relationship with and had been working consistently with the legal services unit.
Mr Jenkins said it was not even necessary to refer to Legal Services in the report. The mandate of this Committee was to report to other committees. It was only necessary, in his view, to say that the relevant regulation would be reviewed by the Portfolio Committee, and that was sufficient detail.
Mr Smith then suggested that the Committee Report should read, in the relevant portion “the Committee recommends that the draft regulations comply with the scrutiny criteria as determined, except for clause 23 which requires further engagement by the Portfolio Committee on Human Settlements”
Members agreed, and adopted the Committee Report.
Draft Credit Rating Rules in terms of section 24(3)(a)(ii) of the Credit Ratings Services Act
Ms Boroto thanked Mr C De Beer, Chairperson of the Standing Committee on Finance, for availing himself at the meeting.
Mr Jenkins noted that the draft Credit Rating Rules complied with the criteria and he had noted no deficiencies, as set out in his legal opinion.
Members adopted the Committee Report, which noted that the Committee was satisfied that the draft Rules complied with the scrutiny criteria.
Draft Supply Chain Management Regulations for Parliament, made under section 65(5) of the Financial Management of Parliament Act
Mr Jenkins noted that this set of regulations was the exception to what he had spoken about earlier. A set of draft regulations had come before the Committee during last year, but the Committee had had concerns about public participation, and had also had concerns about the drafting style of the regulations, which was out of the ordinary. The regulations were referred back. It was now confirmed that in fact a full public participation process had been carried out in respect of the first draft, and was done again in respect of this new draft. The draft now tabled had been re-written and he was satisfied that it was in compliance with drafting style, the criteria and the Constitution. It was hoped that the regulations could be brought into effect at the start of the new financial year. This Committee would now need to report that the amended regulations complied with the scrutiny criteria.
Members adopted the Committee Report, which noted that the regulations complied with the scrutiny criteria
Adoption of previous Committee Minutes:
22 May 2013
Ms S Kalyan (DA) asked that her name be corrected on all the minutes.
Joint Chairperson Ms Boroto took Members through the minutes, page by page. The Minutes were adopted, with the correction of the name.
5 June 2013
The minutes were adopted, subject to the correction of Ms Kalyan’s name.
15 August 2013
The minutes were adopted, subject to the correction of Ms Kalyan’s name.
The meeting was adjourned.
- Parliamentary Legal Services opinion on draft regulations on Housing Development Agency drafts
- Parliamentary Legal Services opinion on draft regulations on military veterans criteria
- Parliamentary Legal Services opinion on draft regulations on Supply Chain Management system of Parliament
- Parliamentary Legal Services opinion on draft Credit Rating Agency Rules
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